Advice and representation for individuals
Pregnancy and Maternity Rights
Having a child should be a happy and exciting time in your life. Yet often we hear stories where women have experienced unfair treatment at work, after announcing their pregnancy, during or upon their return from maternity leave.
Balancing pregnancy or childcare arrangements with working life and career development is challenging enough, without having to cope with unfair treatment or discrimination at work.
Our lawyers are experts in pregnancy and maternity discrimination claims, including in cases involving promotion and pay. If you have been mistreated by your employer, we will do everything we can to fight your corner and help you achieve the outcome you deserve.
What legal rights do I have whilst I am pregnant at work?
There are a number of statutory rights and protections in place for pregnant women in the workplace as follows:
- Paid time off for ante-natal care.
- A workplace risk assessment.
- Up to 52 weeks’ maternity leave (available to employees only) or up to 50 weeks’ shared parental leave (available to employees only where the co-parent meets certain eligibility criteria).
- Protection against pregnancy-related detrimental treatment or dismissal. These rights only apply to employees.
- Protection against pregnancy-related discrimination. This right extends to workers, as well as employees.
To learn more about time off for ante-natal care and workplace risk assessments, please see our briefing here.
What legal rights do I have whilst I am on maternity leave?
Additional statutory rights and protections apply once you are on maternity as follows:
- Statutory maternity pay (SMP) for up to 39 weeks if you meet certain conditions. Alternatively you may be entitled to statutory maternity allowance (or, if taken, statutory shared parental pay).
- The right to accrue paid annual leave (this may be added to the end of the maternity leave).
- The right to work on agreed “keeping in touch” (KIT) days without ending your maternity leave or pay.
- The right to take up to four weeks’ unpaid parental leave per year (this may be added to the end of the maternity leave).
- The right to return either to the same job or a suitable alternative role with no less favourable terms and conditions.
- Priority for suitable alternative employment in a redundancy situation.
- The right to request flexible working.
- Protection against maternity-related detrimental treatment or dismissal. These rights only apply to employees.
- Protection against maternity-related discrimination. This right extends to workers, as well as employees.
To learn more about maternity pay entitlements, please see our briefing here.
Do I need to tell a prospective employer that I am pregnant?
No, you are not required to disclose your pregnancy during a recruitment process. A potential employer or recruiter should not be influenced by the fact that you are pregnant (or might be in the future).
When do I have to tell my employer than I am pregnant?
The statutory position is that an employee must tell her employer by the 15th week before the expected week of childbirth (i.e. at around 25 weeks of pregnancy). Typically, however, employees tell their employers after their 12-week scan. Although, if you are suffering from morning sickness or have previously suffered from complications or miscarriage, it may be best to tell your employer sooner rather than later.
When do I have to start my maternity leave?
Some women like to start maternity leave early in order to have time to prepare for the baby’s arrival or because they start feeling more tired or unwell closer to their due date. Others prefer to work as close to their due date as possible in order to maximise time off on maternity leave with their baby. Whilst in most cases this will be a matter of personal choice, if you are an employee, you cannot start maternity leave before the 11th week before the expected week of childbirth (which is when you are around 29 weeks’ pregnant).
There two exceptions to this rule:
- if you are absent from work for a pregnancy-related reason after the fourth week before the expected week of childbirth, but before the planned start date for maternity leave, the maternity leave will begin automatically on the day after the first day of absence; or
- if your baby is born early your maternity leave will start the day after your baby is born.
What is pregnancy and maternity discrimination?
“Pregnancy and maternity” is a protected characteristic under the Equality Act 2010 (the Act), meaning if you are subjected to discriminatory treatment in connection with your pregnancy or maternity leave, you will be protected.
There is further protection for pregnancy and maternity related detriments and dismissal under the Employment Rights Act 1996, however, you need to be an “employee” to bring a claim under that particular branch of the law.
When do I benefit from protection under the Equality Act 2010?
During the “protected period”. The protected period starts from when a woman becomes pregnant all the way to the end of additional maternity leave (being 52 weeks, if you qualify) or two weeks after the pregnancy ends if you are not entitled to ordinary and additional maternity leave. You may have a claim for discrimination for conduct taking place after the protected period, but such a claim would need to be brought as a sex discrimination claim rather than a pregnancy and maternity discrimination claim.
How long do you have to work for your employer before you can make a pregnancy or maternity discrimination claim?
There is no minimum service period requirement to submit a discrimination claim under the Equality Act 2010 in the Employment Tribunal. In fact, you do not need to be an “employee” to make a claim; job applicants and “workers” (including LLP members) are protected too.
The same applies for bringing a detriment or dismissal claim under the Employment Rights Act 1996. However, it is necessary to be an “employee” to bring these claims in the Employment Tribunal.
What are some of the common types of discrimination experienced during pregnancy and maternity?
Pregnancy and maternity discrimination can come in all forms and there are different types of claims an individual may have, such as direct discrimination, indirect discrimination (on the basis of sex), victimisation and harassment (again, on the basis of sex).
Examples of discriminatory treatment could include:
- being sidelined or excluded;
- being harassed for being pregnant or breastfeeding;
- being overlooked for promotion or training opportunities;
- a reduction in your duties and responsibilities;
- being selected for redundancy;
- not being offered suitable alternative employment;
- being put on a performance improvement plan; or
- being dismissed.
In essence, if you can show that you have been treated “unfavourably” because of your pregnancy or maternity, that is likely to amount to discrimination. Further, if you are dismissed by your employer for a reason connected with your pregnancy or maternity leave, that dismissal will be automatically unfair.
In addition, you may be able to bring a claim of sex discrimination. For example, if during your maternity leave you submit a flexible working request which is rejected, there may be grounds to argue that you have been indirectly discriminated against because of your sex. For a real life example of this, see our case briefing here.
Or, if offensive comments are made towards you, you may have a harassment claim.
It is also possible for a man to bring a claim in the Employment Tribunal for sex discrimination by association with their pregnant partner. Whilst there has yet to be any case law on this specific point, it is likely that a man would also be able to bring an associative sex discrimination claim on the basis their partner is on maternity leave.
How much can you claim for pregnancy maternity discrimination?
Broadly, if you succeed in a pregnancy and maternity discrimination claim, you are entitled to past losses (for example a reduced bonus award) and future losses. Future losses are generally based on the amount of time it takes you to find another job and you will have to provide evidence to the Employment Tribunal that you have tried to mitigate your losses. Compensation for losses in discrimination claims is uncapped. In addition, you may be entitled to an “injury to feelings” award, which varies depending on the nature and impact of the discriminatory treatment.
How long do I have to bring a discrimination claim?
Short time limits apply and in most cases discrimination claims must be brought within three months (less one day) of any act or omission complained of.
The situation is more complicated if you have suffered from a series of similar acts, often over a long period of time. Each case is fact-specific, and you should seek legal advice on the time limit applicable to your case. As the applicable time limits are so short, it is important that you seek early advice to ensure that you protect your position.
What is Acas Early Conciliation and when do I need to do it?
Before bringing a pregnancy and maternity discrimination claim in an Employment Tribunal, you must first contact Acas, who will offer a free “Early Conciliation” service to you to attempt to resolve the dispute. You do not have to agree to participate in Early Conciliation if you do not want to. If you choose not to, Acas will issue you with an Early Conciliation Certificate.
If you choose to attempt Early Conciliation, the usual time limit for bringing your claim will be paused. If the Early Conciliation fails, Acas will issue you with an Early Conciliation Certificate.
An Early Conciliation Certificate is needed before you can lodge a discrimination claim at an Employment Tribunal. You can read more about Early Conciliation on the Acas website: https://www.acas.org.uk/
Can I be made redundant whilst pregnant or on maternity leave?
Yes, a woman can be made redundant whilst she is pregnant or on maternity leave. In order for an employer to dismiss a woman who is pregnant or on maternity leave by reason of redundancy lawfully, the redundancy must be genuine, and the employer must conduct a fair process.
What protection do I have if I am put at risk of redundancy whilst I am on maternity leave?
If an employee’s role is put at risk of redundancy whilst on maternity leave, the employee is entitled to be offered “suitable alternative employment”. This duty extends beyond merely offering the opportunity to apply for a role – the role must be offered unequivocally. Crucially, an employee on maternity leave is given priority for any suitable alternative role, ahead of other employees who have been put at risk of redundancy but are not on maternity leave.
What is suitable alternative employment?
For a role to be “suitable” it needs to be: (i) suitable and appropriate for the employee to do in the circumstances; and (ii) on terms which are not substantially less favourable.
A dispute often arises as to what is or isn’t “suitable”. The factors which are usually considered when deciding whether a position is “suitable” include the role itself, the employee’s experience, status, geographical location and whether it will increase travel time or childcare costs.
If an employer fails to offer suitable alternative employment (either entirely or offers it to an employee who is not on maternity leave) which results in the employee being made redundant, the dismissal will be automatically unfair.
If, however, there is no suitable alternative employment available the employee’s employment will come to an end by reason of redundancy. The employer is still required to give notice (unless there is a contractual provision for notice to be paid in lieu) and, consequently, an employee’s maternity leave will also come to an end.
It is worth remembering that an employer’s duty to offer suitable alternative employment continues until such a time as the dismissal takes effect. As such, even when an employee on maternity leave is given notice of termination by reason of redundancy, if a suitable alternative vacancy arises during her notice period, the “right of first refusal” rule continues to apply.
Do I have any other options?
Even if a suitable alternative vacancy is not available, you may still have a separate right of action for ordinary unfair dismissal or discrimination. For example, where it is a sham redundancy, where a fair procedure was not followed (for example, there was no consultation or the selection exercise was not objective), or the decision to dismiss was linked to the employee’s pregnancy, maternity leave or sex. For a real life example of a sham redundancy related to an employee’s pregnancy and maternity leave, please see our case briefing here.
With this in mind, it is vital that an employee on maternity leave engages with the consultation process and interrogates the employer’s decisions as much as possible.
How can BDBF assist you?
We are a niche law firm focused on employment law. Our clients are from sectors such as finance, insurance, law, healthcare and technology. We have vast experience in advising clients on pregnancy, maternity and sex discrimination and all other pregnancy and maternity related issues. By instructing BDBF you can be confident that you have an intelligent, skilled, and tenacious team on your side.
